The downward spiral

On the Supreme Court, and on judicial politicization.

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Democrats and liberals are in a near state of hysteria over the likelihood that President Trump will win a second Supreme Court appointment following the resignation of Justice Anthony Kennedy. They would be upset at such a prospect under normal circumstances but now their anger is magnified by their twin convictions that President Trump “cheated” Hillary Clinton out of a victory in the 2016 presidential election and that Sen. McConnell “cheated” President Obama out of a Supreme Court appointment in 2016 after the death of Justice Antonin Scalia (a seat eventually filled by Justice Neil Gorsuch). Their desperation has led some to propose extreme measures either to block any new appointment or to plot future acts of revenge against Republicans for placing them in such a predicament.

These proposals set forth in anger and under duress are mostly destructive because they are made without consideration of consequences. All of us should have learned by now that every act of revenge provokes retaliation in a tit for tat process that continues until every norm is broken and institutional trust is thoroughly dissolved. Macbeth said it well: “In these cases we still have judgment here; that we but teach bloody instructions, which being taught, return to plague the inventor: this even handed justice commends the ingredients of our poisoned chalice to our own lips.”

Something like this has certainly happened with the appointment and confirmation of Supreme Court justices. It was not that long ago, in the 1950s, when justices were confirmed in the Senate by voice vote and sometimes without controversy and without extensive hearings. President Eisenhower elevated Chief Justice Earl Warren and Justice William Brennan by recess appointments, the latter in middle of the 1956 presidential campaign. Both were later confirmed in the Senate by voice votes. Few thought this was unusual because few feared the power of the Supreme Court. That sense of complacency evaporated in the 1960s as the Court began to intervene aggressively into controversial political subjects, such as school integration, police procedures, state legislative apportionment, the death penalty, and abortion. As the Court claimed more power in American life, it became more controversial, thereby provoking more criticism, more controversy over new appointments, and more challenges to accepted norms regarding appointments and deference to Supreme Court decisions. Over the decades, every controversial appointment or violation of established norms has provided precedents (or excuses) for more controversy, acrimony, and breaking of norms.

That process is most obvious in consideration of the use of the filibuster to block judicial appointments. The traditional norm in the Senate was that filibusters were to be used in extreme cases only, and generally to block or slow down controversial legislation. The first time it was used in a Supreme Court appointment occurred in 1968 when a cloture vote failed on President Johnson’s nomination of Abe Fortas as Chief Justice. Since then filibusters have been threatened or sometimes tried in efforts to block nominations but have never succeeded due to widespread acceptance of the norm that nominations to the Court can be voted down but not stopped via filibuster. Clarence Thomas’s nomination in 1991 might have been filibustered after his controversial hearings before the Senate Judiciary committee as he was confirmed with just fifty-one affirmative votes (sixty votes are needed to end debate). Justice Alito was confirmed with fifty-eight votes in 2006. More than twenty Democrats in the Senate, including Barack Obama, tried to mount a filibuster against Alito, but they failed due to those Senate norms about the appropriate use of the filibuster tactic.

Those norms have now been thrown to the winds. Between 2000 and 2013 Democrats and Republicans in the Senate used or threatened to use the filibuster to block presidential appointments to the federal courts and executive branch positions. After the 2012 presidential election, a Democratic majority in the Senate invoked the so-called “nuclear option” by ending the filibuster for executive branch and judicial appointments (though leaving it intact for Supreme Court appointments), insuring that President Obama’s nominees would sail through by narrow majority votes. When that vote was taken, Sen. Mitch McConnell, the Republican leader in the Senate, observed that Democrats would live to regret it, implying that Republicans would not hesitate to use the same tactic when given the opportunity.

As it happened, that opportunity came sooner than anyone expected when in 2016 Donald Trump won the presidency and Republicans captured a majority in the Senate. When President Trump moved to appoint Judge Gorsuch to the position on the Court left vacant by Justice Scalia’s death, Democrats (though in the minority) moved to block a confirmation vote via a filibuster. Such a maneuver in the old days might have killed the Gorsuch appointment. However, Republicans, citing the precedent employed by Democrats in 2013, responded by using their fifty-one-vote majority to kill the filibuster for Supreme Court appointments, which opened the way for a successful confirmation vote (fifty-four to forty-five) on the Gorsuch nomination.

As a result of this downward spiral, there are no longer any bi-partisan norms in the Senate either supporting deference to presidential nominations or requiring a super-majority to confirm judicial appointments. It is now but a matter of time until the filibuster is eliminated entirely not simply for appointments but for all legislative measures as well. It turns out that those norms required a degree of bipartisan consensus in the Congress supported by a belief that nominations were not “all or nothing” affairs. That consensus evaporated as competition between the parties in Congress descended into all out partisan warfare.

But it appears that few lessons have been learned from this recent history. Just a few days ago, for example, Matt Lewis, a writer for the Daily Beast and a commentator for CNN, set forth one interesting idea for turning the tables on Republicans, suggesting that Democrats might expand the size of the Supreme Court and fill it with their own appointments at such time as they capture the presidency and both houses of Congress. As he writes:

What (aside from a desire to put country ahead of party) is stopping the next Democratic president with a Democratic Senate majority—say, Elizabeth Warren—from simply packing the Supreme Court? There’s nothing written in stone that says there has to be nine Supreme Court justices any more than there is anything saying you need sixty votes to confirm a judge, or that the Senate should have to vote on—or even consider—a president’s high court nominee.

He is correct on one point: the Constitution established a Supreme Court but left it to Congress to determine the size of its membership. Congress thus has the power to increase the size of the Court without constitutional limit. It has done so occasionally in the past. Congress provided for six justices in the original Judiciary Act of 1789, but subsequently increased the number to seven in 1807, to nine in 1837, then to ten in 1863 before stabilizing it at nine in 1867, where it has remained since. Republicans today could engineer the kind of change Mr. Lewis envisions, as they control the requisite levers of power in Washington. They will not do that, at least until (as in the filibuster) Democrats try it first.

In 1937, President Franklin Roosevelt asked Congress to increase the number of justices in order to overcome a conservative bloc on the Court that had struck down several New Deal measures. He proposed to add one justice for every current member of the Court over seventy years of age. Since there were six such members, he would under this plan gain six immediate appointments, bringing the size of the Court to fifteen members. There was so much blowback against his “court packing” plan that he soon abandoned it. As it happened, one member of the Court soon changed his vote from anti- to pro-New Deal in the so-called “switch in time that saved nine” – thereby making FDR’s plan unnecessary. In light of that experience, presidents have since been reluctant to politicize the Supreme Court to this degree.

The problem with this kind of “court packing” proposal should be obvious. Democrats, assuming they win the presidency and a majority in the Senate, could increase the size of the Court from (say) nine to fifteen members, giving their president six immediate appointments and a safe majority on the Court. However, that would last only until Republicans manage to capture the presidency and the Senate, at which time they will do the same thing, perhaps increasing the size of the Court from fifteen to (say) twenty-one. Democrats would eventually retaliate in kind, followed by successive retaliations by Republicans in an ongoing process of tit for tat. Once such a process starts, there is no telling where it likely to end – perhaps eventually with several hundred justices operating in a large domed building and divided into numerous committees assisted by thousands of staff members. That would be one way to bring the Supreme Court to heel, albeit by destroying it as the arbiter of the Constitution and as the foundation for the rule of law.

The problem with the Supreme Court does not lie in its size or in the fact that one party controls it but in the out-sized power it has claimed in a popular system of government. Today the political parties fight strenuously over control of the Court because they know that with five votes they can gain leverage over the entire political system through a handful of influential decisions—given that the elective branches often check one another and Congress finds it difficult to pass any important legislation at all. This leaves a wide field open for judicial intervention.

Alexander Hamilton wrote in The Federalist that the Supreme Court would be “the least dangerous branch” of government because it has no power beyond the strength of its opinions. History eventually proved him wrong because he and his colleagues among the Founding Fathers set up the Constitution as the supreme law of the land and Supreme Court managed in time to set itself up as the arbiter of the Constitution—thus, by that logic, the Court’s word is the supreme law of the land, even if it is issued in 5 to 4 votes. We have heard many proposals to curb the power of the Supreme Court—limiting the terms of justices to sixteen years, for example, or stripping it of appellate jurisdiction by congressional action (perhaps the most practical option available)—but these are time-consuming or unwieldy to accomplish and tend to politicize judicial questions in unfortunate ways.

In the end, the power of the Court depends upon the support of public opinion that requires obedience to its decisions as a necessary foundation for the rule of law. Justices are undoubtedly aware that there have been occasions in the past when the Court has provoked political backlash by going too far in one direction or another, as happened in response to the Dred Scott decision in 1858, various decisions of the Warren Court in the 1960s, and the Court’s abortion decision in 1973. In those circumstances, the Court dragged itself into the political arena as some attacked or pledged resistance to its decisions, sought to impeach justices, or to block new appointments. We are getting close to that point today, if we are not already there. In our situation, justices would do well to recall the ancient dictum, “Tis excellent to have a giant’s strength, but ‘tis tyrannous to use it like a giant.”

James Piereson is a Senior Fellow at The Manhattan Institute and author (most recently) of Shattered Consensus (Encounter).